This matter comes before the court on cross-motions for summary judgment. The material facts are undisputed. The issue presented is readily stated: whether a Base Labor Agreement ("BLA") entered into between the United States and the Republic of the Philippines which provides for the preferential hiring of local nationals at United States military bases in the Philippines is a "treaty" within the meaning of 5 U.S.C. § 7151 note (1976), which bans discrimination against American citizens at U.S. military bases overseas " unless prohibited by treaty." Restated more generally, the issue is whether the word "treaty" in 5 U.S.C. § 7151 note means a treaty in the constitutional sense an agreement between nations approved by the Senate under its "advice and consent" powers or in the broader international sense of any binding agreement between the governments of two nations. The court concludes that the latter interpretation is proper on the facts of this case, and will enter partial summary judgment for the defendants.

FINDINGS OF FACT

The plaintiffs are citizens of the United States who currently reside in the Philippines. The defendants, Harold Brown and W. Graham Claytor, Jr., are respectively the Secretary of Defense and the Secretary of the Navy. As of March 14, 1978, four of the plaintiffs were employed by the defendants as game room managers at Special Services, U.S. Naval Station Subic Bay, in the Republic of the Philippines. On that date they were notified that the position of game room manager would be converted to a "local national" position which could only be filled by Philippine citizens. This conversion was ordered pursuant to the Base Labor Agreement of 1968, T.I.A.S. No. 6542, Article I, which provides that:

The Base Labor Agreement has not been approved by the Senate under its "advice and consent" powers set forth in Article II, Section 2, Clause 2 of the United States Constitution. It was, however, negotiated because of an arrangement between the United States and the Republic of the Philippines providing for the establishment and maintenance of U.S. military bases in the Philippines. This negotiation took place pursuant to an Act of Congress passed in 1944, which provides in pertinent part:

After negotiation with the President of . . . the Philippines, . . . the President of the United States is authorized by such means as he finds appropriate to withhold or to acquire and to retain such bases, necessary appurtenances to such bases, and the rights incident thereto, . . . as he may deem necessary for the mutual protection of the Philippine Islands and of the United States.

22 U.S.C. § 1392 (1976). This statutory authorization led to an initial Military Base Agreement in 1947, T.I.A.S. No. 1775, which has been the subject of periodic renegotiation, and the Base Labor Agreement of May 27, 1968, T.I.A.S. No. 6542.

Upon hearing of their proposed termination, plaintiffs Rossi, Bumgarner, Perry and Frierson instituted administrative proceedings at the Subic Bay Naval Station, contending that their proposed termination constituted unlawful discrimination on the basis of citizenship, actionable under Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C. § 2000e Et seq. (1976). They also maintained that the termination flatly violated Section 106 of Public Law 92-129, 5 U.S.C. § 7151 note (1976) (hereinafter referred to for convenience as "Section 106"), which provides in pertinent part that:

Unless prohibited by treaty, no person shall be discriminated against by the Department of Defense or by any officer or employee thereof, in the employment of civilian personnel at any facility or any installation operated by the Department of Defense in any foreign country because such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States . . . .

Local officers at the Subic Bay Station rejected the plaintiffs' complaint because they concluded that neither they nor the Department of the Navy had the authority unilaterally to modify the Base Labor Agreement. The four plaintiffs named above were subsequently fired ahead of schedule pursuant to a Reduction in Force (RIF). This early termination is the subject of a retaliation claim by the plaintiffs, which is not before the court in the present motions. The defendants correctly note that all of the plaintiffs' proposed findings of fact which relate to that termination and the retaliation claim are immaterial in the present posture of the case.

After notice of their proposed early termination, the plaintiffs brought this action on December 13, 1978, seeking a Temporary Restraining Order enjoining the defendants from firing them and barring them from the base. The court granted a temporary restraining order to permit adequate consideration of the matter, and then denied plaintiffs' Motion for a Preliminary Injunction on December 22, 1978. The court subsequently ordered cross-motions for summary judgment on the legality of Article I of the Base Labor Agreement and its status within the meaning of Section 106.

The broad meaning of the word "treaty", as the term is customarily used, is:

any international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular description . . . .

Vienna Convention of the Law of Treaties of May 23, 1969, Art. 2(1)(a), Compiled at 63 Am.J.Int'l L. 875 (1969). See also B. Altman & Co. v. United States, 224 U.S. 583, 600-01, 32 S. Ct. 593, 56 L. Ed. 894 (1912); L. Henkin, Foreign Affairs and the Constitution 142 (1972). Thus, the term implies a binding agreement between nations which governs some aspect of the relations between them. The parties do not dispute that the Base Labor Agreement falls within this definition of treaty, because it was entered into in 1968 by the United States and the Republic of the Philippines after joint negotiation and drafting.

The United States Constitution suggests a narrower definition of the term "treaty".
*fn1"
Article II, Section 2, Clause 2, in delineating the powers of the President, states that:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .

The Base Labor Agreement is not, strictly speaking, an "executive agreement." It is what one commentator has labelled a "Congressional-Executive Agreement," L. Henkin, Supra, at 173, because Congress "authorized the President in advance to negotiate and conclude agreements on (a) particular subject( )." Id.; see 22 U.S.C. § 1392 (1976) (President authorized to acquire and maintain bases in Philippines "by such means as he finds appropriate"). Henkin notes that the constitutional basis of such agreements is unclear, but goes on to state:

Neither Congresses nor Presidents nor courts have been troubled by these conceptual difficulties and differences. Whatever their theoretical merits, it is now widely accepted that the Congressional-Executive agreement is a complete alternative to a treaty: the President can seek approval of any agreement by joint resolution of both houses of Congress instead of two-thirds of the Senate only. Like a treaty, such an agreement is the law of the land, superseding inconsistent state laws as well as inconsistent provisions in earlier treaties, in other international agreements or acts of Congress.

L. Henkin, Supra, at 175 (footnotes omitted). Compare id. at 176-84 (discussion of "sole" executive agreements). Of course, it still can be maintained that Congress withdrew in 1973 a portion of that broad power which it granted to the President in the Act of 1944. Here again the question turns on the intent of Congress as gauged by an examination of the legislative history. See Restatement (Second) Foreign Relations Law of the United States § 145 (1965).
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If not technically a treaty requiring ratification, nevertheless it (the agreement) was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, . . . .

224 U.S. at 601, 32 S. Ct. at 597. More recently, the United States Court of Appeals for the Eighth Circuit held that the Philippine Military Bases Agreement, which was drafted pursuant to the same statutory authority as the BLA, was a treaty within the meaning of a Supreme Court decision providing that the extradition of a defendant in a criminal case could only be valid if authorized "by treaty or Act of Congress." Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971), Cert. denied, 405 U.S. 926, 92 S. Ct. 976, 30 L. Ed. 2d 799 (1972); See Valentine v. United States, 299 U.S. 5, 57 S. Ct. 100, 81 L. Ed. 5 (1936). Thus, the mere use of the word "treaty" is not dispositive.

This conclusion is buttressed by an examination of the context in which the word "treaty" appears. Section 106 provides that "unless Prohibited by treaty, no person shall be discriminated against . . . ." The defendants point out quite correctly that the term "prohibited" in this context is awkward, at best. It would have been more appropriate to state that "unless provided by treaty", or "unless permitted by treaty", no discrimination could occur. Whether the use of "prohibited" is an indication of sloppy draftsmanship or a more subtle intention of Congress cannot be ascertained at this point. The court does consider this confusing language significant, however, in evaluating the plaintiffs' contention that Congress chose its words carefully and meant just what it said when it used the word "treaty".

H.R.Rep.No. 433, Supra, at 31 (Conference Committee Report) See S.Rep.No. 93, Supra, at 23 (similar statement) U.S.Code Cong. & Admin.News 1971, p. 1508. Other references to proposed section 106 merely state that it would "prohibit discrimination against American citizens and their dependents in employment on overseas military bases." Id. at 2, 6, 41, U.S.Code Cong. & Admin.News 1971, p. 1440. At the time Public Law 92-129 was passed, the NATO Status of Forces Agreement contained no provision for hiring local nationals over American citizens. Defendants' Cross Motion for Partial Summary Judgment at 11. The debates on the floor reflect a concern with matters other than discrimination pursuant to Base Labor Agreements. E.g., 117 Cong.Rec. 13919 (quote similar to provision in Conference Report); 16126 (remarks of Sen. Cook) (wives of enlisted men unable to secure work permits although many foreign nationals are hired); 16128 (remarks of Sen. Schweiker) (expressing concern over command decisions to hire local nationals in Germany although not required to do so).
*fn4"

The rule of In pari materia like any canon of statutory construction is a reflection of practical experience in the interpretation of statutes: a legislative body generally uses a particular word with a consistent meaning in a given context. Thus, for example, a "later act can . . . be regarded as a legislative interpretation of (an) earlier act . . . .'

The present case deals with two statutes which do not deal with the same subject matter. Both the Case Act and the debate over Senate Resolution 214, it is true, dealt with Congressional concern over the Executive Branch's increasing use of executive agreements rather than submitting international agreements to the Senate. Section 106, however, insofar as the court can determine from the legislative history, dealt with discrimination against the families of American servicemen, particularly in Europe. If the Congress was attempting to make Section 106 another front in the war against executive agreements, as plaintiffs suggest, there should have been at least Some indication of that intent in the legislative history. The court therefore rejects the plaintiffs' suggestion that the word "treaty" be interpreted in the constitutional sense just because it was so employed in roughly contemporaneous legislation.

The court does not agree with the suggestion put forth by the defendants, however, that this controversy is nonjusticiable. Defendants' Cross-Motion for Summary Judgment at 13-14, Citing Diggs v. Richardson, 180 U.S.App.D.C. 376, 555 F.2d 848 (1976); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S. Ct. 431, 92 L. Ed. 568 (1948). This case does not require the court to interpret the terms of a treaty or to meddle in areas of foreign import which have been traditionally regarded as the province of the President. It involves the construction of an Act of Congress, a task which necessitates an evaluation of the wording of the statute, the legislative history, and the applicable case law and canons of construction. The impact on foreign affairs of such construction does not render the case nonjusticiable. It does, however, persuade the court that the construction urged by the plaintiffs would have to be supported by a far firmer basis than that existing here.

V. Applicability of Title VII to this Action

The court concludes that the term "treaty" in Section 106 should be construed to mean a treaty as the term is defined under international law an agreement between nations. This being the case, the Base Labor Agreement is a valid exercise of the President's authority to retain bases "by such means as he finds appropriate." 22 U.S.C. § 1392 (1976). The specific provision that the Department of Defense may discriminate on the basis of citizenship if provided by treaty therefore controls over the general provisions of Title VII. Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S. Ct. 1989, 48 L. Ed. 2d 540 (1976); Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). The court need not address the question whether Title VII applies to citizenship as well as to national origin.

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